QOCS dis-applied where Claimant's conduct obstructed the just disposal of proceedings

A Claimant who had been pestered to bring a claim for personal injury under the QOCS regime, following a road traffic accident and subsequently discontinued her claim, had the Notice of Discontinuance set aside and her claim struck out. Pursuant to CPR 44.15, QOCS was then suspended due to the Claimant's conduct obstructing the just disposal of the proceedings and the Claimant was ordered to pay the Defendant's costs.

Partner, Miles Hepworth who represented the Defendant in this case, where liability had been admitted, but causation disputed, provides an overview of the background to the case and how QOCS came to be suspended despite the Claimant discontinuing. The result supports the contention that QOCS can be suspended in cases where a claimant discontinues and an order for costs then enforced against a Claimant and serves as a cautionary message to those claimants who think that bringing compensation claims under the QOCS regime carries no risk.

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The QOCS regime

The Qualified One Way Costs Shifting (QOCS) regime has been in place now for over four years and was introduced in place of the recovery of success fees and ATE premiums. Ahead of the regime's introduction over four years ago, there were those that thought that the fact that a defendant could not recover their costs from unsuccessful claimants, might encourage a "have a go" claims culture and those intent in pursuing fraudulent personal injury claims.

In an effort to waylay those fears, when QOCS was introduced, provision was made in the rules for the protection afforded under QOCS to be suspended; where proceedings might have been struck out or where there was fundamental dishonesty. Whilst there have been many reported decision in respect of the latter, there are still very few dealing with the circumstances in which QOCS can be suspended where proceedings have been struck out.

CPR r.44.15 states that QOCS can be suspended where:

"...the proceedings have been struck out on the grounds that –

(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b) the proceedings are an abuse of the court’s process; or

(c) the conduct of the claimant is likely to obstruct the just disposal of the proceedings"

QOCS can also be suspended under CPR r.44.16:

"where the claim is found on the balance of probabilities to be fundamentally dishonest."

Background to the claim

The Claimant was involved in a road traffic accident on 13 January 2014. She submitted a claim for vehicle damage and entered into a credit hire agreement on 17 January 2014, the documents relating to credit hire confirming that nobody had been injured in the accident. The Claimant did not attend hospital or her GP after the collision.

In May 2016, more than two years later, the Claimant submitted a Claims Notification Form in which she claimed to have sustained whiplash type injuries. She confirmed that she had not had any time off work and had not sought any medical attention. There was no reference to any psychological injury or PTSD within the CNF.

The Claimant was later examined by her chosen medical expert on 24 May 2016. The medical report set out that the Claimant had suffered injuries to her shoulder, chest, lumbar spine, as well as PTSD. The shoulder injury prognosis was 32 months, post-accident. The chest injury, lumbar spine injury and PTSD all resolved at four months post accident.

The Claimant's subjective account was the only evidence on which the expert had based his report. At the time of her medical examination the Claimant had informed the medical expert that her shoulder pain had not resolved, although it had improved.

The loss of amenity consequential to the accident was described as being extensive effects on her day to day activities, such as cooking and baking. The Claimant also stated that she had had to take seven days off work and had thereafter been restricted in her work activities for a further period of 12 weeks. Whilst she indicated that she had suffered a loss of income, she did not make a claim for loss of earnings.

The approach then taken by the insurer

Mulsanne Insurance Company Limited defended the claim on the on the basis that no injury claim was presented at the time that the claim for hire had been made and as a result of the Claimant taking more than two years to present the claim. Furthermore, following submission of the CNF the Claimant disclosed that she had decided to make the claim because she had become fed by being pestered by a number of phone calls from accident management companies, encouraging her to make a claim.

Prior to the issue of proceedings, the Defendant insurer had requested access to the Claimant's medical records in order to test the veracity of her account. The Claimant had elected not to provide the disclosure requested. After the issue of proceedings, the Claimant's solicitors continued to refuse the Defendant access to the Claimant's medical records despite the request being made within the Defence and on other occasions.

Part 18 Questions were raised of the Claimant in order to clarify her account but her solicitors confirmed that she would not respond.

After Directions Questionnaires had been filed, a Court Order was issued on 17 November 2016 requiring disclosure of the Claimant's medical records, details of her loss of earnings, together with her occupational health records.

The day after the Court's Directions Order the Claimant discontinued her claim. The Claimant's solicitors had sought agreement that the Claimant was entitled to discontinue with no adverse costs provision but, when DWF confirmed that having regard to the Claimant's conduct costs would be sought, the Claimant's solicitors simply filed a Notice of Discontinuance, indicating when they did, that the matter was subject to QOCS without any evidence of fundamental dishonesty and the Defendant was therefore not entitled to any costs.

Application made to suspend QOCS

Following receipt of the Notice of Discontinuance, an application was made by the Defendant for an order in the alternative, for QOCS to be suspended pursuant to CPR r.44.16 on the basis of fundamental dishonesty or for the Notice of Discontinuance to be set aside and for the claim to be struck out and for QOCS to be suspended under CPR r.44.15. The application was listed for a hearing on 20 March 2017. Neither the claimant nor her solicitors responded to the Application until 17 March 2017 when a statement was filed by the Claimant.

The Claimant stated that she had not started proceedings sooner because she had not realised that she was entitled to do so. In her witness statement she confirmed that only made a claim having been pestered to do so and had understood that the claim would be straightforward, taking only three months to resolve. It went on to say that in June 2016, the Claimant discovered that she was pregnant, became more stressed and, due to concerns about her health, decided that it was not worth continuing her claim. She said that she continued to receive chiropractic treatment, but provided no documentation to support her position.

The Claimant failed to address within her witness statement why she had failed to disclose her medical records, occupational health records or employment records as she had been ordered to do by the court. The Claimant disclosed responses to Part 18 Questions which her solicitors had previously refused to disclose, but the replies which were signed with a Statement of Truth were inconsistent in relation to the nature of her injuries.

The Claimant had been invited to attend the hearing and to address the allegations raised against her, but had chosen not to attend and so her evidence in her witness statement could not be tested.

Judgment

At the hearing of the application, Employment Judge Russell determined that it was just and in accordance with the overriding objective that the Claimant's statement be admitted, but she gave limited weight to its contents given that it wasn't supported by any documentary evidence and that the Claimant had not attended, so that she could be cross-examined. That said, the Judge determined that she did not have to hear oral evidence from the Claimant in order to make a finding of fundamental dishonesty: the claimant had had the opportunity to attend, but had chosen not to.

The Judge highlighted inconsistencies within the Claimant's own evidence and expressed concern at some of the inferences that could be drawn from those inconsistencies and the timing of the discontinuance. The Judge found that had the Claimant complied with the order for disclosure, it may have revealed evidential material valuable to the court on the issue of credibility.

On balance, however, the judge declined to make a finding of fundamental dishonesty on the basis of the evidence before her and without oral evidence from the Claimant. Instead she felt that the Claimant's conduct, in discontinuing shortly after the directions order had been made, had obstructed the just disposal of the proceedings.

In discontinuing and refusing to give disclosure, the Claimant had deprived the Defendant of the opportunity to pursue arguments in relation to fundamental dishonesty. The Judge felt that the Claimant's conduct was such that it was appropriate to dis-apply QOCS and she therefore set aside the discontinuance, struck out the claim and ordered QOCS be suspended pursuant to CPR r.44.15 (1)(c) – "obstructing the just disposal of proceedings".

Costs were awarded to the Defendant in the sum of £3,852.95 and those costs have been recovered in full.

The Claimant's attempt at challenging the Defendant's costs led the Judge to comment that this was a matter rendered more complicated as a result of the Claimant's solicitor refusing to engage at an early stage with a request for medical records.

Comment

There have been contrary first instance decisions on whether it is appropriate to suspend QOCS in circumstances where a claimant has discontinued and where there has not been a trial of the issues. This decision supports the contention that QOCS can be suspended in instances such as these.

Claimants who bring claims speculatively can have their QOCS protection removed and be made to pay the Defendant's costs, but the Claimant will have been aware of that and yet still brought the proceedings. The Defendant's persistence paid off.

The fact that the Claimant had been pestered to bring a personal injury claim, further the highlights the need to ban cold calling and to ensure that those that are involved are punished.

In May 2018 the European Commission published its legislative proposal for changes to the EU rules on motor insurance. This followed its 2017 REFIT consultation which sought views on updating a number…

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.